Hilchos Choshen Mishpat

Volume II : Number 6

Public Use Of Private Property

Question:

Reuven owns an empty lot next to a group of stores. For many years
people have used this lot as a shortcut to the stores, and for parking
their cars while shopping. Reuven has never objected to this. Reuven is
now making plans to construct an office building on his lot. The people
in the neighborhood are objecting, claiming that since Reuven had
permitted the public to use his lot for so many years, this is considered
as if he had donated it for public use, and he has no right to take it
back.

Who is correct?

The residents of a certain neighborhood in Jerusalem take a shortcut
from the top of a hill to the bottom by going through an apartment
building built into the hill. This has been going on for many years, and
the residents of the building have not objected. However, as the
neighborhood grows, more and more people have been making use of this
shortcut. The residents of the building now want to stop this practice.

Can they prevent the people who have been using this shortcut over the
past years from doing so?

Answer:

If a person has specifically and willingly given the public the rights
to use his property with no time limitation on the public's rights, it is
considered as if the public acquired these rights from him, and he has no
right to reverse this agreement. Our Rabbis call this a "Meitzar
Shehichziku Bo Rabim", a path that the public has taken possession of.

This is true even if the original owner is now offering a different
property that is even more convenient for public use to replace this one.
Not only that, but even if the residents of the neighborhood are prepared
to accept the owners offer and forfeit their rights to this land, they
have no right to do so. Once it is owned by the public, it is owned by
the entire public, even the non-residents. The residents have no
authority to represent the non-resident public's rights in this
forfeiture.

If the property owner did not expressly give the public rights to his
property, the public still acquires rights if the community leveled or
paved the property, or otherwise made a change to the property that
would only be done by a person with ownership rights, and the owner was
aware of this and remained silent.

However, if he merely saw that people were walking through, or parking on
his property, and did not prevent them from doing so because he really
had no use for the property at that time, if he were to decide to now
take back the property for his own use, he is permitted to do so. This is
true even if the public has been using his property for many years.

In light of the above, in neither of the cases in question would
the Halacha of "Meitzar Shehichziku Bo Rabim" apply. Therefore, the owner
of the lot is permitted to take it back to build on, and the residents of
the apartment building can now prevent non-residents from using their
building as a shortcut.

Sources:

The principles of this Halacha are discussed in the Gemara in Bava Basra
(99b - 100a). The Rashbam there (D"H Shehichziku Bo Rabbim) points out
that we can only consider it to belong to the public if they did an act
to the property that is generally only done with the approval of the
owner, and the owner is aware of it and remains silent. Although this is
not specifically mentioned by the other Rishonim, the Bais Yosef and the
Perisha in Choshen Mishpat (377) quote the Rashbam as the Halacha without
quoting anyone that differs with this opinion. Therefore, unless the
owner expressly donated the property to the public for indefinite use, or
remained silent even after seeing the property being fixed up for public
use in a permanent manner, the property remains in the possession of the
owner even if the public had use of it for many years.

For a discussion as to who qualifies as the "public" regarding this
Halacha, see the Pischei Teshuva in Choshen Mishpat (377:1-2), and in the
Teshuvos Avnei Nezer (Choshen Mishpat Siman 13).

This issue of Business-Halacha is dedicated by Moshe Hillson in memory of
his father Dov Arye (benjamin) Hillson, his mother Machla Zlata (Marion)
Hillson, and his aunts Frieda Friedman and Sara Lea (Lilian) Port.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!